Case No. 4:01 CR 207
July 29, 2002
MEMORANDUM OF OPINION AND ORDER DENYING DEFENDANT TRAFICANT'S SECOND MOTION FOR NEW TRIAL
A jury found Defendant Traficant guilty of counts one through ten of the superseding indictment on 11 April 2002. (Docket #341). On 22 April 2002, Defendant Traficant filed a timely motion for a new trial (Docket #347), which was denied on 25 June 2002 (Docket #419).
On 22 July 2002, Defendant Traficant, pro se, filed a Motion to Disqualify the Trial Judge from Ruling on the Defendant's Motion for a New Trial Per Rule 33 of the Federal Rules of Criminal Procedure. (Docket #441). On 23 July 2002, he also filed a Motion for Recusal of Judge Lesley Brooks Wells from Hearing Any and All Further Proceedings in the Matter Entitled United States of America v. James A. Traficant, Jr. (Docket #444). The government filed an opposition to both motions. (Docket #448).
The supporting memorandum is identical to that of the motion to disqualify.
In addition to being motions for disqualification and recusal, these two motions appear to constitute a second motion for new trial. The Court construes them as such. For the reasons that follow, Mr. Traficant's second motion for new trial is denied.
Mr. Traficant moves for a new trial pursuant to Rule 33 of the Federal Rules of Criminal Procedure. Rule 33 provides, "On a defendant's motion, the court may grant a new trial to that defendant if the interests of justice so require." According to the Sixth Circuit, "[t]he defendant bears the burden of proving the need for a new trial and such motions should be granted sparingly and with caution." United States v. Turner, 995 F.2d 1357, 1364 (6th Cir. 1993).
Rule 33 also discusses the timing of a motion for new trial: "A motion for new trial based on newly discovered evidence may be made only within three years after the verdict or finding of guilty . . . A motion for new trial based on any other grounds may be made only within 7 days after the verdict or finding of guilty or within such further time as the court may fix during the 7-day period."
The verdicts of guilty against Mr. Traficant were rendered on 11 April 2002. During the subsequent 7-day period, this Court did not fix any special deadline for motions for new trial based on grounds other than newly discovered evidence. Thus, Mr. Traficant's second motion for new trial, which was filed over three months after the verdicts were rendered, is untimely unless it is based on newly discovered evidence.
For motions for new trial based on newly discovered evidence, "[t]he following elements must be established before a new trial will be granted: (1) the new evidence was discovered after the trial; (2) the evidence could not have been discovered earlier with due diligence; (3) the evidence is material and not merely cumulative or impeaching; and (4) the evidence would likely produce an acquittal." Id.
Mr. Traficant seems to be claiming that he is entitled to a new trial based on: (1) his allegations that the Judge should have recused herself from his case; (2) Richard Detore testimony before an adjudicatory panel of the House Ethics Committee; (3) a newspaper article regarding a juror who allegedly changed his mind about the verdicts; and (4) two affidavits regarding David Sugar.
A. The Recusal Issue
Mr. Traficant contends that he should receive a new trial on the ground that the Judge could not be impartial because her husband's law firm provided legal representation to John J. Cafaro, a government witness at trial, and the Cafaro Company "[alt all times relevant." (Docket #441 at 5).
As the Court explained in its Order Regarding Disqualification or Recusal (Docket #453), this Court declined the transfer to it of the Cafaro cases United States v. Cafaro, 01CR208, because legal work regarding laser-guidance patents may have been performed on behalf of U.S. Aerospace Group at some time by one of the offices of the law firm of Squire, Sanders Dempsey, of which Judge Wells' husband is a senior partner. The Court so advised counsel for Mr. Cafaro and the United States in May 2001. Judge Solomon Oliver's order denying the United States' motion to transfer was issued on 7 May 2001 (U.S. v. Cafaro, Docket #3, 4) and was reported in the press. See Patricia Meade, Businessman Pleads Guilty to One Count, The Vindicator, 15 May 2001, at A2.
Mr. Traficant's recent discovery of these circumstances does not entitle him to a new trial. These events, which occurred over a year ago, could have been discovered with due diligence well before July 2002. Furthermore, as the Court explained in its Order Regarding Disqualification or Recusal (Docket #453),
The circumstances which led this Court to decline transfer to it of Mr. Cafaro's case have nothing to do with Mr. Traficant. Neither Squire, Sanders Dempsey, nor the Judge's husband, represented either Mr. Cafaro or USAG in any matter related to Mr. Traficant's case. There is no ground for disqualification or recusal of this Judge from this case.
Mr. Traficant's allegations that the Judge should recuse herself have no merit and do not entitle Mr. Traficant to a new trial.
B. Mr. Detore's Testimony
Mr. Traficant argues that he is entitled to a new trial in light of Richard Detore's 16 July 2002 testimony before an adjudicatory panel of the House Ethics Committee. Mr. Traficant characterizes the testimony as "testimony that corroborates much testimony given by my witnesses regarding motives to "get Traficant', about Janet Reno's vendetta and definitely disputes the facts of the government witnesses like J.J. Cafaro and Al Lange." (Docket #441 at 19).
Mr. Detore's testimony is not newly discovered evidence. Mr. Traficant was aware of the content of the testimony by 1 August 2001, when he taped a conversation between himself and Mr. Detore, during which much of the content was discussed. Moreover, Mr. Traficant could have called Mr. Detore as a defense witness during trial. Alter Mr. Traficant subpoenaed Mr. Detore to testify at trial, Mr. Detore moved to quash the subpoena. (Docket #264). This Court denied Mr. Detore's motion to quash, thus clearing the way for Mr. Traficant to call him as a witness. (Docket #266). It was Mr. Traficant who elected not to call Mr. Detore. He cannot credibly claim that the testimony Mr. Detore could have given during trial is now "new evidence." Therefore, this claim is time-barred.
Even if the claim were not time-barred, it would not entitle Mr. Traficant to a new trial. If Mr. Traficant thought that Mr. Detore's testimony could have strengthened his defense, Mr. Traficant could have called Mr. Detore as a defense witness. His failure to do so does not entitle him to a new trial.
C. The Juror's Possible Second Thoughts
Mr. Traficant also contends that he should receive a new trial because The Plain Dealer reported that a juror may have changed his mind about his guilt after hearing Mr. Detore's Congressional testimony.
Mr. Traficant is not entitled to a new trial on this basis. It is unclear what the juror's view actually is. An article in The Vindicator, attached to the government's brief, reports that the juror is standing by his verdict. More importantly, defendants in criminal cases are not entitled to new trials even if a juror reconsiders his or her verdict once it is rendered. "The Supreme Court has long adhered to the general rule that a juror is incompetent to impeach his or her verdict." United States v. Gonzales, 227 F.3d 520, 523 (6th Cir. 2000). See also United States v. Moses, 15 F.3d 774, 778 (8th Cir. 1994) (stating "the district court properly declined to investigate the jurors . . . post-verdict belief that Moses is innocent."); United States v. Miller, 806 F.2d 223, 225 (10th Cir. 1986) (holding that a juror's second thoughts about a verdict does not require further inquiry or a new trial); United States v. Gerardi, 586 F.2d 896, 898 (1st Cir. 1978) (stating "[t]he judge properly concluded that . . . the juror's vacillations and second thoughts did not impugn the unanimity of the guilty verdict nor in any way necessitate a new trial.").
D. The Affidavits
Finally, Mr. Traficant offers two affidavits to support his motion for new trial. A 22 July 2002 affidavit from Rick Berger, who worked on Mr. Traficant's Congressional staff, states that Mr. Berger overheard a conversation between Mr. Traficant and David Sugar, a government witness. Mr. Berger claims that Mr. Sugar stated that he "was pressured by the government to lie against" Mr. Traficant. (Docket #441, at Exhibit 2). In a 21 July 2002 affidavit from Sandra Ferrante, who testified at trial as a defense witness, Ms. Ferrante states that Joe Sabol told her that Mr. Sugar told him that the government pressured him to "go along with the program." (Docket #441, at Exhibit 1). In its response, the United States attaches two counter-affidavits dated 23 July 2002 from David Sugar, who strenuously denies the contents of the Berger and Ferrante affidavits. (Docket #448, at Exhibits 4 5).
In any event, these affidavits do not entitle Mr. Traficant to a new trial. The affidavits are not material; they could only serve to impeach Mr. Sugar's testimony. Morever, the affidavits would not be likely to produce an acquittal because they would be inadmissible. Mr. Berger's affidavit is double hearsay, while Ms. Ferrante's affidavit is triple hearsay. As the record in this case demonstrates, the evidence against Mr. Traficant with respect to Count Two, which involved Mr. Sugar, was substantial.
Mr. Traficant's claims are meritless. His claim that he is entitled to a new trial on the basis of Mr. Detore's Congressional testimony also is time-barred. Mr. Traficant's second motion for new trial is denied.
IT IS SO ORDERED.